(영문) 서울행정법원 2019.9.20. 선고 2018구합81615 판결

A. On August 1, 1981, the Plaintiff was appointed as a local administrative secretary on December 31, 2010. From September 15, 2014 to December 26, 2016, the head of the Ministry of Government Administration and Home Affairs served as the head of the Ministry of Public Administration and Security division from September 15, 2014, and from August 10, 2017, the head of the Ministry of Public Administration and Security C division is serving as the head of the Ministry of Public Administration and Security.

B. On January 9, 2018, the Defendant issued a reprimand against the Plaintiff pursuant to Article 78 of the State Public Officials Act (hereinafter referred to as the “instant disciplinary measure”) on the ground that the Plaintiff’s act (hereinafter referred to as the “instant disciplinary cause”) was against Article 63 (Duty to Maintain Dignity) of the State Public Officials Act.

Even if the Plaintiff does not reside in the F apartment or G of Sejong Special Self-Governing City, which is a subordinate employee of the Jeju Special Self-Governing City, the Plaintiff prepared a written move-in report in collusion with E on January 12, 2015, which stipulates that the moving-in report shall be made at the third floor community service center of the H building of Sejong Special Self-Governing City to the domicile, and submitted it to the public official in charge, and filed a move-in report to the address and filed a false report on the resident registration.

C. The Plaintiff dissatisfied with the instant disposition and filed a petition review with the appeals review committee on February 1, 2018, but the appeals review committee dismissed the petition on July 23, 2018.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 through 3 (including branch numbers, hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Relevant statutes;

It is as shown in the attached Form.

3. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

In light of the following circumstances, the instant disposition constitutes an illegal disposition committed by deviating from and abusing discretion, which is excessively heavy disciplinary action in light of the degree of the Plaintiff’s misconduct.

1) The Plaintiff’s filing of a move-in report to E’s domicile was merely for the convenience of the receipt of mail, and did not have any other unlawful purposes such as real estate speculation.

2) The Plaintiff had performed his duties in good faith as a public official for about 35 years. In particular, the head of B division performed excessive duties to the extent that he could not leave his office at the time of his duties and thereby damaged 14 or more young children. Along with the recognition of the performance of such duties as Prime Minister’s commendation, etc., the Defendant issued the instant disposition without considering the aforementioned circumstances.

3) Considering various circumstances, such as the fact that there was a family member to support the Plaintiff, the Plaintiff’s disguised transfer period was relatively short, and the fact that the Plaintiff recognized a mistake from the process of disciplinary investigation and reflects it, the disadvantage suffered by the Plaintiff is excessive compared to the public interest that the instant disposition intends to achieve the reprimand disposition.

B. Determination

1) According to the overall purport of evidence Nos. 7 and 11 through 15 as well as the overall purport of the arguments and arguments, ① in the course of investigating assault cases that occurred at the J Team model at which the Plaintiff belongs, the investigative agency confirmed the act of disguised transfer as to the cause of the instant disciplinary action and indicted the Plaintiff on charges of violating the Resident Registration Act; ② upon the issuance of a summary order of KRW 1 million due to the same criminal facts as the cause of the instant disciplinary action, the Plaintiff’s objection to formal trial (Seoul District Court Decision 2017Da1209) was filed, and the purpose of disguised transfer was to receive postal items as alleged in the instant case was for the acceptance of real estate speculation and it was not for the illegal purpose of real estate speculation, and thus constitutes a justifiable act under social norms. However, the court below rejected the appeal court’s ruling and ordered a fine of KRW 1 million on December 7, 2017 to the effect that the Plaintiff did not have any other unlawful intent than the Plaintiff’s assertion in the appellate trial.

2) However, considering all the circumstances alleged by the Plaintiff, such as the above-mentioned facts, there is no illegality of deviation from or abuse of discretionary authority in the instant disposition. Therefore, the Plaintiff’s assertion is without merit, and the instant disposition is lawful.

A) Definite transfer constitutes a crime subject to criminal punishment where a person may be punished by imprisonment with labor for not more than three years or by a fine not exceeding 10 million won pursuant to Article 37 subparag. 2 of the former Resident Registration Act (amended by Act No. 14286, Dec. 2, 2016). Even if a judgment of suspended sentence was rendered on the crime of violating the Resident Registration Act due to considering the disguised transfer of real estate without the purpose of real estate speculation, this constitutes a violation of a public official’s duty to maintain dignity, and there is also a need to punish such violation.

B) The above misconduct constitutes a case where the degree of criticism is weak and transitional. Article 2(1) [Attachment 1] of the Enforcement Rule of the Public Officials Disciplinary Decree (hereinafter referred to as the “Rules of this case”) which is the criteria for disciplinary action, provides that “in the case where the degree of criticism is weak and transitional, based on the criteria for disciplinary action applicable to the instant disciplinary action,” the reprimand constitutes a disciplinary criteria. The reprimand constitutes a minor disciplinary action, which is “in the case of giving guidance to and attending for the previous department.” Therefore, insofar as the disciplinary action is recognized, there is no minor disciplinary action than the reprimand, and the disciplinary criteria prescribed by the Rules of this case are not reasonable. Accordingly, the instant disposition conforms to the disciplinary action determined by the Rules of this case.

C) As seen earlier, the fact that the Plaintiff won twice the Prime Minister’s commendation that the Plaintiff may be subject to disciplinary mitigation. However, since the Plaintiff was already subject to a disposition of unwritten warning on the ground of neglecting to direct and supervise assault cases that occurred in the J Team model on June 16, 2017, the public officials prior to the said disposition are excluded from the public officials subject to disciplinary mitigation after being subject to disciplinary mitigation pursuant to the proviso to Article 4(1) of the instant Rule.

Therefore, the above merits of the Plaintiff are not likely to be considered as an element of mitigation of the instant disposition, and there is no other public confirmation that the reprimand disposition at the time of the instant disposition can be mitigated as an unwritten warning disposition.

D) It cannot be deemed that the public interest intended to establish the public service discipline and secure the public trust in the public service society by the instant disposition is smaller than the disadvantage the Plaintiff sustained.

4. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.